heavily from English Law • Pakistan is a common law country • Legal systems in countries around the world generally fall into one of two categories – Common law systems and – Civil law systems • The main difference between the two systems is that in common law countries case law – in the form of published judicial opinions – is of primary importance • In civil law systems codified statutes predominate • Many countries use a mix of the systems and the division is usually not as clear cut COMMON LAW • Uncodified law • Largely based on precedent i.e. judicial decisions passed in similar cases • Available in case records and documented caselaw in the form of law journals e.g. the SCMR, PLJ, PLR etc. • What precedents are applied to what case are largely dependent on the presiding judge - Judges have more flexibility to fashion an appropriate remedy and hence, shape law • Lawyers play an active role in legal proceedings • E.g. USA, India, England, Pakistan CIVIL LAW •Largely codified – comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure and the appropriate punishment for each offense •Judges take the lead in proceedings •Lawyers still represent clients in court but have a less central role – importance of oral arguments, in court presentations and active lawyering is lower •Preparation and drafting of contracts may be left to quasi-legal professionals •E.g. France, Japan, China, Germany SOURCES OF LAW
• Three main sources of law:
– Customs – Precedent – Statute CUSTOMS • General practice (traditions) of a community goes on to be accepted as law • May be written or un-written • A traditional common rule or practice that becomes an intrinsic part of the accepted, and expected, conduct in a community, profession or trade • Test: whether the actions of the wrong-doer have conformed to expectations which other parties had reasonably formed based on everyday practices/conduct of a particular community • In order to become customary law, a rule must be: – Known to the community – Followed by the community – Enforced by the community • Examples: – Panchayat: a village council – respected elders chosen and accepted by the community or local body; – Jirga: a council of tribal leaders that make decisions by consensus. Prevalent in afghans and pashtuns – The rule that the oldest son inherits rule of the family property • Some customary laws have been codified – The Black Administration Act, 1927 which gave the Gov-Gen of South Africa the right to banish a tribe/native from one area to another whenever he deemed it to be in general interest; – The Recognition of Customary Marriages Act which recognizes customary marriages in South Africa • Some statutes recognize the importance of such customs e.g. the Contract Act, 1972 provides in section 1 “…nothing contained herein shall affect any usage or custom of trade.” PRECEDENT • Based on the latin maxim ‘stare decisis et non quieta movere’ i.e. stand by what has been decided and do not unsettle the established • Particular decisions by particular judges concerning particular parties to particular cases can be used in the determination of general rules • Example: 3 men commit murder. One is sentenced to life imprisonment, one to lifetime charity work and one to death penalty. What is wrong with this? • Three types of precedent: 1) Binding precedent • Reasoning in preceding cases act not only as a guide but may be binding on courts • Decisions of the higher courts are binding on equal and lower courts e.g. a decision of the Supreme Court will be binding on the High Court • This creates a degree of certainty in law • Like cases are decided in like manner 2) Persuasive precedent • Decisions of the lower courts may be followed by courts higher up in the hierarchy • Decisions from other countries may also influence the Pakistani Courts in deciding a case in a particular manner e.g. a great deal of case law sees Pakistani judges borrowing from Indian precedent or English precedent where Pakistani law is lacking 3) Original precedent Where the presiding judge sets a new precedent in a case where precedent or law may be silent e.g. a man with a superpower to kill by looking at a person STATUTE • An act of a legislature that declares, prescribes, or commands something i.e. written law passed by a legislature on the state or federal level. • Statutes set forth general propositions of law that courts apply to specific situations. • A statute may forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society • In Pakistan the Parliament is the federal/supreme legislative body. • Article 50 of the Constitution: the Parliament or Majlis-e-Shoora consists of the President + 2 houses i.e. the National Assembly (NA) & the Senate • NA: members elected during national elections. Each Province has seats according to population - some have greater representation than the other (See: Article 51 of the Constitution) • Senate: consists of equal representation from each province (See: Article 59) The Legislative Procedure (Article 70) 1) Introduction of a Bill: A Bill is proposed or sponsored by a Legislator (note: a bill may originate in either house) 2) First reading: the member who introduced the Bill explains his reasons for doing so 3) Reference to Committee: the Bill is scrutinized by a Committee which has expertise in the matter 4) Second reading: there is a detailed, clause by clause discussion of the Bill before the entire house 5) Third reading: final reading of the Bill after which it is transmitted to the other house for approval. The Bill will undergo the same process in the other house. 6) Presidential assent: once the Bill is passed by both houses without amendment, the Bill is presented to the President for assent. Once assent is received the Bill becomes statute or law. • Note: – Passing of a bill means approved by a majority vote – Where one house suggests an amendment the bill is sent back to the house where it originated to be passed again – Bills have to be passed within 90 days – Money bills will be passed only by the NA and the President – Matters on provincial legislative lists are dealt with by the Provincial Assemblies – If any house of parliament is not in session the President can promulgate an Ordinance. The ordinance shall stand repealed after 120 days if it is not presented or passed by the Parliament (see article 89) HIERARCHY OF COURTS SUPREME COURT
•Part VII Chap 2
•Court of ultimate jurisdiction •It has three types of jurisdiction – Original Jurisdiction • Dispute between two governments (federal and/or provincial) • Issue of public importance with reference to the enforcement of fundamental rights – Appellate jurisdiction (Art 185) • where there is a substantial question of law on the interpretation of constitution • Where the HC has on appeal reversed an order of acquittal of an accused person • Where the HC has imposed punishment for contempt of the HC – Advisory jurisdiction: if the president requires the opinion of the SC on a question of law of public importance HIGH COURT • Part VII Chap 3 • Article 199 deals with the jurisdiction of the HC • E.g. Sec 7 of the Companies Ordinance, 1984 gives the HC original jurisdiction in most matters FEDERAL SHARIAT COURT • Chapter 3 A • Art 227 • Conformity of laws with the injunctions of islam • This court is entrusted with the responsibility to examine and decide on whether a law or provision of law is repugnant to the injunctions of islam • Given suo moto powers where repugnancy exists (Suo Moto: where an authority acts on its own motion or initiative) • Appellate jurisdiction in HUDOOD cases (Hudood law: a body of law that seeks to establish an Islamic system of justice enforcing punishments in the Quran and sunnah) Confirm or pass any other order about a hadd punishment • Exercise revisional powers on any case decided by a criminal court under a law relating to the enforcement of hudood